On November 22, 2019, the federal Consumer Financial Protection Bureau filed a complaint in the U.S. District Court for the Southern District of New York against Sterling Infosystems, Inc. regarding allegations that it violated the Fair Credit Reporting Act in providing criminal background checks to employers.  Sterling is a “consumer reporting agency” as defined by the FCRA, which provides background check results to employers when requested.
Continue Reading Background Check Vendors Beware: the CFPB’s Authority to Enforce the FCRA Applies to You Too

The National Labor Relations Board under the current administration continues to issue employer friendly rulings in the context of evaluating whether employer work rules violate the National Labor Relations Act. 
Continue Reading Boeing Test Takes Off as NLRB Holds Employer’s Confidentiality and Media Contact Rules Lawful

On May 13, 2019, in Outokumpo Stainless USA, LLC v. N.L.R.B., No. 17-15498 (11th Cir.), the Court of Appeals for the Eleventh Circuit enforced an NLRB order finding that stainless steel producer Outokumpo’s posting of a side letter along with a NLRB settlement notice “constituted non-compliance with the terms of the Settlement Agreement” and that “default judgment was thus proper under the plain terms to which the Company had previously agreed.” 
Continue Reading Employer’s Posting of Side Letter Explaining NLRB Settlement Notice Breaches Settlement Agreement

Massachusetts’ highest court, The Supreme Judicial Court, recently issued its long awaited decision in Sullivan v. Sleepy’s LLC, SJC-12542, in which the SJC responded to certified questions of first impression from the United States District Court for the District of Massachusetts. The case is particularly important for businesses which pay employees through commissions or draws (i.e., advances on commissions), particularly in the retail context where the ruling departs considerably from federal law.
Continue Reading Massachusetts Retail and Inside Salespersons Are Now Entitled to Overtime and Sunday Premium Pay

We recently highlighted DOL opinion letter 2018-27, which rescinded the 80/20 rule and was a welcome change for employers in the restaurant industry.  However, less than two months after the DOL’s policy change, the U.S. District Court for the Western District of Missouri rejected the DOL’s new guidance, claiming it is “unpersuasive and unworthy” of deference. 
Continue Reading Federal Court “Tips” the Scale in Favor of Restaurant Workers by Reviving 80/20 Rule

Before the lame duck period of the 115th Congress, Rep. Jerrold Nadler (D-NY) and a group of 58 Democrat co-sponsors, introduced the Restoring Justice for Workers Act (H.R. 7109), which would prohibit  employers from requiring employees to sign mandatory arbitration agreements.
Continue Reading Epic Changes to Epic Systems: House Democrats Seek to Prohibit Class Waivers in Arbitration Agreements

The Department of Labor recently published an Opinion Letter (FLSA-2018-27) reissuing its January 16, 2009 guidance (Opinion Letter FLSA-2009-23) and reversing its Obama-era position on the 20% tip credit rule.  This opinion letter marks another major shift in DOL’s policy and presents a welcome change for employers in the restaurant industry.


Continue Reading DOL “Tips” the Scale in Favor of Restaurant Employers by Ending 20% Tip Credit Rule

The Consumer Financial Protection Bureau issued a new “A Summary of Your Rights Under the Fair Credit Reporting Act” form on September 12, 2018.  This form replaces the previous version issued on November 12, 2012, and is expected to be implemented by employers on September 21, 2018.
Continue Reading New Compliance Requirements for FCRA Background Checks

As we wrote about last month, on May 21, 2018, the Supreme Court rendered its decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1632 (2018), rejecting perhaps the largest remaining obstacles to the enforcement of class action waivers in arbitration agreements in the employment context.  The Court concluded that the class action waivers did not violate the National Labor Relations Act.  Although the Court’s opinion also seemed dispositive of whether such agreements could be avoided under the Fair Labor Standards Act, at least one claimant tried to continue to litigate the issue, which was disposed of last week in Gaffers v. Kelly Servs., Inc., No. 16-2210 (6th Cir. 2018).  And now the Sixth Circuit has addressed whether Epic Systems would apply to arbitration agreements with putative independent contractors who contended that they should have been treated as employees.
Continue Reading Supreme Court’s Decision Upholding Arbitration Agreements Applies to Independent Contractors Too